The Supreme Court’s June 15 landmark 6-3 ruling barring workplace discrimination against LGBTQ+ workers represented the most important legal victory for gay and transgender rights in the U.S. since the high court legalized same-sex marriage in 2015. The fact that two conservative justices joined the court’s four liberals in the ruling surprised many legal observers.
Writing for the majority, Trump appointee Justice Neil Gorsuch asserted that gay and transgender people are protected under Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against workers on the basis of sex as well as race, color, national origin and religion. But Gorsuch suggested that the Religious Freedom Restoration Act “might supersede Title VII’s commands in appropriate cases,” an unresolved issue that will likely be dealt with by courts in the future. While the Supreme Court ruling is a great leap forward, it doesn’t apply to small businesses that employ as many as one in six Americans.
Between The Lines’ Scott Harris spoke with Samuel Garrett-Pate, communications director with Equality California, who celebrate the high court decision, while also affirming the importance of the ongoing campaign to pass the Equality Act in the U.S. Senate, which would amend the Civil Rights Act, ensuring that no American is evicted from their home or is denied a service based on their sexual preference or gender identity.
SAMUEL GARRETT-PATE: Title VII of the Civil Rights Act of 1964 prohibited discrimination in the workplace on the basis of a number of characteristics: race, religion, national origin and sex. And for decades, LGBTQ advocates and legal experts have argued in federal courts that sex includes sexual orientation and gender identity.
And here’s why. If you are discriminating against a gay employee — because it is a man who loves another man — then you are discriminating on the basis on the fact that he is a man. If you are discriminating against a transgender employee on the basis that that employee was assigned male at birth, but identifies as a woman, then you are discriminating against that employee on the basis of their sex. They’re inextricably linked. This is what we’ve argued for decades. And this is what six out of nine Supreme Court justices, including two appointed by Republicans, including one appointed by Donald Trump and the other being the chief justice agreed that we are correct — that inherently discriminating against an employee on the basis of sexual orientation or gender identity is to discriminate against that employee on the basis of their sex, which has been illegal since 1964.
So I’ve seen a lot of folks out there talking about, you know, up until last Monday, it was legal to fire someone for being gay or being transgender when in fact, what the Supreme Court said is that since 1964, it has been illegal to fire someone for being gay, for being bisexual, for being transgender. And that’s, you know, that’s huge for our community. It’s an incredible victory.
SCOTT HARRIS: Is there anything in this recent Supreme Court decision that carves out exceptions for religious organizations that through their own doctrine object to having anybody from the LGBTQ community in their workplace?
SAMUEL GARRETT-PATE: Not as we read it. It’s silent on that. So it doesn’t expand or carve out those exceptions. But it doesn’t speak to it either. What the decision does is say that when Title VII protects people from discrimination on the basis of sex, it protects people from discrimination on the basis of sexual orientation and gender identity, because they are inextricably linked. Title VII does have a religious exemption, but the religious exemption basically says that a religious employer can favor employees of the same religion. It doesn’t say that they can discriminate against women or gay employees or transgender employees because they feel that something about those characteristics is inherently against their religion. Unless it is a ministerial role – so then a Catholic organization can’t be forced to hire a woman into a role that’s reserved for a priest, right?
But they cannot discriminate against a woman who wants to work as a secretary at a Catholic organization. And therefore, likewise, under Title VII of the Civil Rights Act of 1964, they wouldn’t be able to discriminate against a transgender person or a gay or lesbian or bisexual person who wants to work as a secretary. So no, there’s no specific carve out. But again, I would point back to the fact that Neil Gorsuch has a very expansive, broad view of what religious liberty allows people to do. And he believes that religious liberty allows an employer or any other person to essentially weaponize their religion to discriminate against other people. We believe in religious liberty, we believe in religious freedom, they’re cornerstones of the American democracy of American system. And they do not — or should not — allow for a person to discriminate against another person.
SCOTT HARRIS: Lay out for our audience exactly what the effort is now and has been for quite some time to pass the Equality Act in the U.S. Senate that has already been passed in the House of Representatives that would amend the Civil Rights Act and the protections that would be afforded by such passage and the president signing it into law. That is not part of this recent Supreme Court ruling.
SAMUEL GARRETT-PATE: The Equality Act historically passed the House over a year ago. (Sen.) Mitch McConnell that has refused to take it up. And President Trump has said that he opposes it. It’s been sitting on Mitch McConnell’s desk for over a year. Democratic senators have been encouraging him, urging him to take it up and I believe that if it was brought up for a vote, it would pass.
There is no federal law barring a hotel or a movie theater or a restaurant from saying, you know what? We don’t serve women here or we don’t serve men here. And so, because there’s not that sex-based discrimination protection for public areas of public accommodation, hotels, restaurants, bars, movie theaters, then even with this ruling, you can’t argue that there’s federal law protecting against discrimination for the LGBTQ community in those same areas and public accommodation. So if we don’t think that an area of public accommodation should be able to turn away someone because they’re gay or lesbian or transgender or bisexual, then we need to pass the Equality Act. Federally funded programs like colleges and adoption agencies that receive federal funding – those sex discrimination protections don’t exist until we need to pass the Equality Act to make sure that LGBTQ people don’t face discrimination in any aspect of life. We need to pass the Equality Act. And if the members of Congress sitting in power right now, won’t pass the Equality Act, then we need to replace them with people who will.
For more information, visit Equality California at eqca.org.